On 8 December 2017, a report was published jointly by the UK and EU negotiators. The report records the progress made during the first phase of negotiations under Article 50 TEU, including agreements reached on protecting the rights of EU and UK citizens, to be included in the final Withdrawal Agreement.
The citizen’s rights debate was a key issue during the first phase of negotiations, with much discussion regarding what rights would be retained and how they would be protected. The report aims to “provide reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law… where those citizens have exercised free movement rights by the specified date.” EU citizens and their family members will be able to claim settled status in the UK and vice versa. The agreement has been widely welcomed, however there is still a lack of clarity on several issues.
The agreement states that the use of Union law concepts must be interpreted in line with the case law of the CJEU up until the specified date. It is unclear to what extent this influence will continue after the UK leaves the EU, and whether the interpretations will apply indefinitely for citizens to whom the Withdrawal Agreement applies.
The agreement also refers to the issue of judicial redress, stating that the Withdrawal Agreement will apply to any applicant who is waiting for final judgment in a judicial redress case sought against rejection of their application for settled status. However, it does not specify whether judicial redress can be sought from the CJEU.
The CJEU is referred to as the “ultimate arbiter” for interpretation of EU law, and UK courts are instructed to have due regard for relevant decisions of the CJEU after the specified date. This also includes the right for UK courts to ask the CJEU questions regarding the interpretation of citizens’ rights for up to 8 years. Further information is needed to clarify the scope of CJEU involvement and confirm what mechanisms could be put in place to establish effective communication.
The proposed rules for family members of citizens protected by the Withdrawal Agreement are likely to face legal challenges if enforced. The agreement states that specific categories of third country family members will be entitled to join EU citizens who obtain settled status in the UK, and vice versa. This would result in EU citizens with settled status in the UK being conferred greater rights than UK citizens residing in the UK (i.e. those who have not exercised their free movement rights). This could potentially result in discrimination against UK citizens who attempt to bring their third country national family members to live with them in the UK.
The agreement refers to several mechanisms that will be introduced in relation to referrals to the CJEU and coordination of social security systems, as well as an Independent National Authority to act as controller for the implementation of the final Withdrawal Agreement. Given the complexities involved in navigating the implementation (or transition) period, these mechanisms should be agreed and set up as a matter of urgency.
The report refers to the “specified date” for free movement rights to be exercised. At the time of the report being published, this was assumed to be the date of the UK’s withdrawal (29 March 2019). However, draft negotiating directives from EU diplomats recently come to light which propose extending the deadline until 31 December 2020. This extension would block the UK from introducing new immigration controls for a further 21 months. A spokesperson for the Conservative party has warned that this position, if final, would make the possibility of a no deal scenario more likely.